Chapter 11 Getting a Green Card as an Investor

• Library: U.S. Immigration Made Easy (Nolo) (2023 Ed.)

CHAPTER 11 Getting a Green Card as an Investor

A. Are You Eligible for a Green Card Through Investment?

1. Two-Year Testing Period for Investor-Based Green Cards
2. Bringing Your Spouse and Children
3. Inadmissibility

B. Quick View of the Application Process

C. Step One: You File a Visa Petition

1. Sending the Petition
2. Awaiting USCIS Approval of the I-526 Petition

D. Step Two: You May Have to Wait to Apply for Permanent Residence

E. Step Three: You Apply for an Immigrant Visa or Green Card

1. Adjusting Status in the U.S
2. Consular Processing

F. Step Four: Immigrant Visa Holders Enter the U.S

G. Step Five: Converting Your Conditional Residence Into Permanent Residence

Like many countries, the U.S. provides an avenue for entry to wealthy people who will pump money into its economy. (See I.N.A. § 203(b)(5), 8 U.S.C. § 1153(b)(5).) However, it's not like buying a ticket to get in. Applicants for a green card through investment (Employment Fifth Preference or EB-5) must not only invest between $800,000 and $1,050,000 in a U.S. business, they must take an active role in that business (though they don't need to control it). This chapter will discuss who is eligible for a green card through investment and how to apply.

Green cards for investors are limited to 10,000 per year, with 3,000 of those reserved for persons investing in "regional centers," which we'll explain below. Like other visa categories, the EB-5 category has a per-country quota of 7% (700 of the 10,000). The 10,000-visa quota includes not only the investor, but spouses and children seeking green cards along with the investor. If the State Department believes that the quota (either per country or the 10,000 visa total) will be exceeded for the year, it will establish a waiting list based on applicants' Priority Date (the day you filed the first portion of your application). This happened for the first time ever in September 2014 with EB-5 visas for Chinese nationals, who had met their per-country limit.

USCIS can easily reject applications in the EB-5 category, partly because the eligibility requirements are narrow, and partly because evidentiary requirements are strict due to the category's history of fraud and misuse. In fact, some lawyers encourage clients to use their wealth to fit themselves into another category with a greater chance of success. For example, by investing in a company outside the United States that has a U.S. affiliate, the person might qualify to immigrate as a transferring executive or manager (priority worker, in category EB-1).

SEE AN EXPERT

Do you need a lawyer? If you can afford an investment-based green card, you can afford the services of a high-quality immigration lawyer. The EB-5 category is one of the single most difficult categories under which to establish eligibility, and certainly the most expensive. It's well worth the investment to gain legal advice before taking any significant steps toward using this strategy. If you try the application once on your own and fail, you could damage your chances of success in the future. What's more, because you are expected to make the investment first, and apply for the green card later, you could waste a lot of money.

Because you're investing a substantial amount of money, you should get input from financial, tax, accounting, investment, and other business professionals. An immigration lawyer is not necessarily qualified to advise you on the business aspects of the investment. Many companies offer a full range of services to potential EB-5 investors, including advice on which regional centers to invest in.

Key Features of an Investment-Based Green Card

Here are some of the advantages and limitations of an investment-based green card:

• As long as you have money to invest and can demonstrate that you are in the process of investing it in a for-profit business, you yourself do not need to have any particular business training or experience. Also, investors from any country in the world are welcome to apply, although the immigration authorities are more suspicious about fraud with applicants from certain countries.
• Your green card will initially be only conditional—that is, it will expire in two years, after which you will need to apply to renew it and make it permanent.
• You can choose to invest your money in a business anywhere in the U.S., so long as you maintain your investment long enough for the green card to become permanent and are actively engaged with the company you invest in.
• After your green card becomes permanent, you can work for another company or not work at all.
• You must actually live in the United States—you may not use the green card only for work and international travel purposes.
• Your spouse and unmarried children under the age of 21 can get green cards as accompanying relatives.
• As with all green cards, yours can be taken away if you misuse it—for example, you live outside the U.S. for too long, commit a crime, or even fail to advise U.S. immigration authorities of your change of address. However, if you keep your green card for five years and live in the U.S. continuously during that time (yes, your two years as a conditional resident count), you can apply for U.S. citizenship.

A. Are You Eligible for a Green Card Through Investment?

Green cards through investment are available to anyone who invests a minimum of $1,050,000 in creating a new U.S. business or restructuring or expanding one that already exists. It doesn't matter where you got the money—gifts and inheritances, for example, are fine—so long as you obtained it lawfully. The business must employ at least ten full-time workers, produce a service or product, and benefit the U.S. economy. Full-time employment is defined as requiring at least 35 hours of service per week.

The investor, spouse, and any children may not be counted among the ten employees. Other family members may be counted, however. The ten workers don't necessarily have to be U.S. citizens, but they must have more than a temporary (nonimmigrant) visa—green card holders, and any other foreign nationals who have the legal right to indefinitely live and work in the United States, can all be counted. Independent contractors do not count toward the ten employees. (See 8 C.F.R. § 204.6(e).)

The required dollar amount of the investment may be reduced to $800,000 if the business is located in a rural area or in an urban area with an unemployment rate certified by USCIS to be at least 150% of the national average. Rural areas are defined as any location not part of an official metropolitan statistical area or not within the outer boundaries of any city having a population of 20,000 or more. USCIS will identify the parts of the particular state that are high in unemployment and qualify for the lower investment amount. Even if you know that the area of your intended investment has extremely high unemployment, it will not qualify for the lesser dollar amount without this USCIS designation.

Also, the investor must be actively engaged in the company, either in a managerial or a policy-forming role. (See 8 C.F.R. § 204.6(j)(5).) Passive investments, such as land speculation, do not ordinarily qualify someone for a green card in this category—except under the regional center program described next.

Under the EB-5 regional center program (which is not permanent and requires Congress to occasionally extend it), 3,000 EB-5 visas are set aside for immigrants who invest in "designated regional centers." Regional centers are designated (and sometimes preapproved as qualifying investment vehicles) by USCIS, but run privately, and work to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment. Investors in regional centers need not prove that they themselves provided new jobs for ten U.S. workers, only that as a result of the investor's contribution, the regional center created ten or more jobs, directly or indirectly, or increased regional productivity.

The overwhelming majority of EB-5 green cards are obtained by investment in regional centers, for two reasons. First, most regional centers operate in rural or high-unemployment areas that allow for a $800,000 investment rather than $1,050,000, and second, they allow a wealthy investor to make a cash investment without creating or managing a new enterprise. The key for regional center investors, however, is to make sure that it is well-managed—the fact that USCIS has designated the center as an investment vehicle does not guarantee that it will succeed long enough to allow the investor to become an unconditional permanent resident.

CAUTION

Regional centers have been the subject of lawsuits, and changes could lie ahead. As this book went to print, USCIS was in the process of complying with a court settlement agreement from the Northern District of California over treatment of Regional Center petitions under the EB-5 Reform and Integrity Act of 2022. The settlement keeps in place already-approved Regional Centers and outlines timelines and filing requirements for Regional Centers and immigrants investing in them. Check uscis.gov for the latest guidance, forms, filing fees, and timelines.

USCIS also has the authority to require a greater amount of investment than $1,050,000. This could occur when the investor chooses to locate the business in an area of low unemployment. At present, USCIS has adopted the policy of not raising dollar investment requirements on this basis.

Also, you must place your investment at risk of partial or total loss if the business does badly. However, the entire investment does not have to be made in cash. Cash equivalents, such as certificates of deposits, loans, and promissory notes, can count in the total. So can the value of equipment, inventory, or other tangible property. (See 8 C.F.R. § 204.6(e).)

A number of investors may join together in creating or...